Category: Legal communication

Client relationshipsCollaborationLegal communicationLitigationPeople skills

Repeat listening

This Thursday, I will be pleased to moderate a panel on productive communication between insurance adjusters and insurance defense counsel. Attorney Jeremy Richter of Webster Henry and claims adjuster Nikki DeWitt of Carolina Casualty Insurance Company will be the panelists at the event sponsored by the CLM’s Alabama chapter.

Our discussion will focus on how attorneys and claims adjusters can use listening and other communication skills to work together efficiently and effectively. Many of these assignments involve repeat players on both the adjuster and attorney side. What I’m most interested in hearing from Nikki and Jeremy is steps they recommend for establishing solid communication early, and maintaining effective communication in later cases. Effective listening is a major part of both goals, and Jeremy and Nikki will share their observations and some examples of how they use listening skills. This conversation will be customized to the claims adjuster-attorney relationship, but I expect some broadly applicable points as well.

Registration is open to CLM members and fellows here. I will follow up here on the blog after the panel.

 

Client relationshipsClinical legal educationCollaborationEmotional intelligenceInterviews

Review of Alan Alda’s If I Understood You

ralph_anneThanks to Anne Ralph, Clinical Professor of Law at the Ohio State University, Michael E. Moritz College of Law, for this guest post reviewing Alan Alda’s new book on listening, If I Understood You, Would I Have This Look on My Face? 

Any lawyer who’s misunderstood (or been misunderstood by) a client, opposing counsel, or judge knows that failed communication can thwart even the best legal knowledge and skills. In If I Understood You, Would I Have This Look on My Face?: My Adventures in the Art and Science of Relating and Communicating, Alan Alda makes the case for an intentional focus on effective communication by highlighting the very real costs of failed communication: “[D]isengagement from the person we hope will understand us” [xvi]. This disengagement can “stand in the way of all kinds of happiness and success” [xvi], including, I think Alda would agree, success in the practice of law.

In Alda’s book, lawyers will find useful insights related to listening. Granted, most of Alda’s case studies and anecdotes center on how scientists communicate their knowledge—which makes sense given that Alda hosted the TV series Scientific American Frontiers for eleven years and founded the Alan Alda Center for Communicating Science at Stony Brook University. But Alda’s friendly writing voice and skill at sharing complex concepts in simple, memorable terms make the book valuable for anyone interested in improving their communication skills.

The book maps Alda’s own personal journey to improve his communication. Alda describes his communication “blunders” when he began hosting Scientific American Frontiers: He assumed he knew more than he actually did, which offended a scientist he was interviewing; he repeatedly ignored the scientist’s obvious body language showing discomfort; and finally, as he barreled along through an interview, he asked a set script of questions instead of questions that grew out of what the scientist was sharing. In short, Alda writes, “I wasn’t really listening to him” [6]. In this list of blunders, lawyers might recognize their own experiences with awkward client interviews, ineffective depositions, or unsuccessful negotiations with opposing counsel.

Alda, a prolific actor and director whose deep insights into human nature are apparent on every page, was disappointed with himself for being so disconnected in the interview. Alda’s acting experience, including his improv training, had taught him to connect to other actors in a deep and immediate sense, creating spontaneous responses between people. As a result, he had expected himself to be naturally better at listening and reacting to his interview partner.

Thus began his quest to better understand the science of communicating–or, as Alda puts it, borrowing a term from director Mike Nichols: “relating.” Relating, as Alda defines it, means “observing” another person with such awareness that “everything about them affect[s] you: not just their words, but also their tone of voice, their body language, even subtle things like where they’re standing in the room or how they occupy a chair” [10].

When Alda consciously used his improv training in his conversations with scientists, he found his way to “responsive listening,” the key first step in relating and a concept that roughly translates to being open to being changed by the other person in the conversation.

The willingness to be changed required him to use both his natural curiosity and an awareness of his own ignorance. It turned out that conversations were hampered when Alda made assumptions about the scientists’ work based on his own limited knowledge—those assumptions led him to ask limiting questions, which reduced the value of the information the scientists provided. But when Alda engaged in the kind of responsive listening that his improv work prepared him to do, the effect was contagious, leading the scientists to become more responsive as well. Alda described it as being “drawn into a kind of dance”[12]: Responsive listening made conversations dynamic because both participants in the conversation were constantly attuned to each other, instead of just waiting for each other to finish talking.

Naturally, Alda wondered if he had stumbled onto something big: would improv training help scientists better communicate complex concepts to the non-scientist world?

The answer is yes, as the rest of the book chronicles. Alda explores how people can develop their skill in relating, leading to better communication. As it turns out, both scientific studies of communication and his personal work with improv and acting bear out the idea that responsive listening is an essential building block in communicating anything to an audience.

For instance, Alda describes taking engineering students through of a series of improv exercises, which teach an ultimate lesson: “The person who’s communicating something is responsible for how well the other person follows him” [30]. In other words, true communication is inseparable from responsive listening and observing: “Communication doesn’t take place because you tell somebody something. It takes place when you observe them closely and track their ability to follow you” [17]. After these exercises, every engineering student’s delivery of a scientific talk improved. Again, Alda uses scientists and doctors in his stories, but the lessons can apply equally well to lawyers and clients or to lawyers and their other audiences.

For lawyers who want to better engage in responsive listening, this true connection that fosters communication, Alda identifies two key capacities:

  • empathy (which Alda describes as an emotional understanding of what the other person is feeling) and
  • Theory of Mind (which he describes as a rational understanding of what another person is thinking).

Both these capacities can be learned, and the book describes how teaching these skills to doctors leads to better outcomes for patients—and, interestingly, even to lower rates of medical malpractice lawsuits.

Because not everyone has access to the improv training or Theory-of-Mind courses the book describes, this blog’s readers might find Alda’s personal experiments at improving his empathy and theory of mind interesting and compelling. Alda participated in some small studies that aimed to increase empathy through practices he incorporated into his everyday life. For instance, he practiced reading the faces of people he encountered every day—from family members to passers-by on the street to cab drivers—trying to observe what they were feeling. He also practiced silently naming the emotions he observed. The results of these small studies suggest that these interventions have the intended effect of increasing empathy, and Alda invites readers to try these themselves. (In addition to describing how these exercises can improve one’s capacity for responsive listening, Alda also covers the role that increased empathy and awareness of Theory of Mind play in effective writing and in making a message memorable.)

I encourage lawyers to read the book—its friendly tone and use of stories makes the content memorable and accessible. Until you do read the book, consider the following as big takeaways for lawyers’ listening:

Listening is an essential part, a necessary precondition, of communicating well. Effective listening requires close attention to another person, thoughtful observation not only of words but of body language, withholding jumping to conclusions, and curiosity.

Thanks again to OSU’s Anne Ralph. She also writes about narrative as it is shaped (distorted?) by the rules of civil procedure. See more of Anne’s legal scholarship here: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1669761

 

 

Legal communicationSummer associates

Resources for summer associates

Many summer associates are starting jobs this week. This post may be my shortest ever, but here are some resources for effective communication, especially listening, in the summer-associate setting:

https://listenlikealawyer.com/category/summer-associates/

Here is a post by Georgia State Professor Kendall Kerew on listening for law-school externs, with many lessons for summer associates as well:

https://listenlikealawyer.com/2014/01/08/listen-to-learn-four-ways-listening-can-help-you-get-the-most-out-of-your-externship/

And here is a checklist for taking a new assignment:

https://listenlikealawyer.com/checklists-2/listening-checklist-for-taking-a-new-assignment/

Good luck to all the summer associates of 2018!

Dispute resolutionJudicial listeningLegal communicationNonverbal communicationPublic speaking

Silence for lawyers

Silence.

That was the heart of Emma González’s speech at March for Our Lives on March 24. After a introductory remarks, she named the 17 dead and the small experiences in life they would never partake of again. Then she stood, silent, for the remainder of six minutes and 20 seconds—the time it took for the gunman to kill and then escape at Marjory Stoneman Douglas High. The Washington Post called it “the wordless act that moved a nation”:

The absence of language, the extended pause for contemplation, remains a rare thing in public discourse, and even rarer onstage. A moment of silence is the ritualized form of respect we employ on many occasions to mark tragedy, but it’s usually only a moment. González’s silence was an act that felt, in its way, radical. It was as if she dropped the mic — yet a mic was still in front of her.

The length of the silence is what made it more than rote. Long silences challenge the senses and the mind, reflected in an art critic’s visual and auditory hallucinations within a “supersilent anechoic chamber” on exhibit at the Guggenheim in New York.

Silence in these political and artistic contexts operates as rhetorical Silence. On a more pragmatic note, addressing silence with a lowercase “s,” Bret Rappaport recently published “Talk Less”: Elloquent Silence in the Rhetoric of Lawyering, 67 J. Legal Ed. 286 (2017). He quotes Che Guevara:

Silence is argument carried out by other means.

When silence is done correctly, it brings a “participatory dynamic between speaker and audience” in which the audience fills in the unspoken premise of an argument. In his article Rappaport goes on to describe background and techniques of silence. He lists three kinds of silence: simple silence as when you stop speaking so someone else can take a turn, silencing another by not allowing them to speak, and the “eloquent silence.” The article focuses on the latter. Silence can be eloquent when it violates expectations, leads the audience to understand a shared meaning, and is understood by the audience as directed at them. (Here he cites Purdue professor Barry Brummett.)

Rappaport goes on to show that silence enhances thinking by moving past quick, intuitive reactions to the world. Awkward silences can also yield better results in negotiations because the counter-party feels compelled to fill the silence, perhaps to their detriment. Silence also functions as flattery and, since by definition it means not talking, it reduces the risk of unintentional revelations.

Rappaport breaks down examples from movies and well-known trials (O.J. Simpson of course). He says early on that his argument for lawyers is remedial: silence as a “lawyer’s tool [is] one too often unappreciated or outright ignored.” For lawyers who wish to become more powerful public speakers or achieve better strategic results by saying less, I recommend Rappaport’s article.

I also recommend closing all other tabs, notifications, and alerts to watch the full-length version of Emma González’s speech at March for Our Lives.

 

 

 

 

Law schoolLegal communicationLegal educationLegal skillsLegal writing

A digression: re-learning to swim

While attempting—as an adult—to learn how to swim properly, the experience gave me a whole new appreciation for what 1L legal writing students go through. The idea of adults trying new things in middle age is a whole genre, found in a variety of essays and books, e.g. What I learned as the worst student in the class and Guitar Zero: The Science of Becoming Musical at Any Age. Law students may or may not start law school in their 40s, but they do bring beliefs, methods, and habits that may or may not help them adjust to legal writing. On this, my final class of the year teaching 1L legal writing, here are some thoughts.

swimmers-swimming-race-competition-56837.jpeg

What you already know—or think you know—can block your learning.

I already “knew” how to swim. As a child, I took just enough swimming lessons to say I could swim. The P.E. teacher stood in the pool and led us in a lot of bobbing up and down, some survival sidestroke, and a little freestyle. Swimming was not an embedded part of my hometown’s culture, though. The local country club closed down and was bowled over to make a Super Wal-Mart. My exposure to swimming over the next 30 years consisted of watching the Olympics. As a result, I had some mistaken ideas.

Take breathing, for example. It seemed like a good idea take stop kicking and just kind of coast while breathing to the side. Swimming is supposed to seem effortless, is it not? This idea was really, really wrong. I also thought I should breathe on alternating sides—a belief that is not wrong, but also not necessary for a beginner. Other issues were far more important to address, such as body rotation and not putting my palm out like a stop sign.

Mistaken and distorted beliefs afflict beginning legal writers as well. Everyone in law school has some kind of writing background, even if it’s been years in between. Memories of long-past writing lessons may bubble to the surface. Some of these memories are good. Yes, a paragraph should have a topic sentence indicating what it’s about, followed by details. That was true in fourth grade and still valuable now.

But some of the writing memories are bad, at least for legal writing. Law students often come at legal writing brandishing a thesaurus because they don’t want to sound repetitive and, they fear, simplistic. In fact as experienced legal writers know, “elegant variation” (a term coined by Richard Wydick) may introduces ambiguity, which most of the time in legal writing is very, very bad. New legal writers should put the thesaurus away and focus more on reading legal language with a legal dictionary at their side. Experienced legal writers can certainly use the thesaurus; they know which words can be varied and which cannot. But that’s the wrong thing to emphasize at the beginning, just as alternate breathing is a skill to save for later in one’s swimming process.

Skills are like muscles.

What you do becomes who you are. Based on years of running, my legs were pretty strong even if orthopedically challenged. But swimming quickly revealed an upper-body deficit. My arms were accomplishing almost nothing. In fact, using arms actually slowed me down at first, as compared to kicking alone.

Similarly in taking on legal writing, students’ past experiences will have contributed to their strengths and weaknesses coming into the course. Those who have been writing lengthy liberal arts papers are more likely to be comfortable bringing in sources, generating content, and highlighting ambiguities. Those who have been working in business may be very comfortable with summaries up front and concise recommendations.

These strengths of each disciplinary background come with weaknesses as well. Spotting ambiguities is necessary but not sufficient to create valuable, reliable legal advice. Concise summaries and recommendations may not go far enough to help a lawyer or client understand the relevant legal context and possibilities.

Learning a new variation of a skill doesn’t mean ignoring what has worked in the past, but it does mean being willing to reflect and modify. Professor Teri McMurtry-Chubb has written a handbook for translating various disciplinary backgrounds into strong legal writing in Legal Writing in the Disciplines: A Guide to Legal Writing Mastery.

It’s harder when people are watching.

Not knowing how to do something can feel very embarrassing. Swimming around other actual swimmers was a psychological obstacle. I would leave the pool rather than share a lane. I saw other people—kids and adults—working with swim coaches. Part of me wanted to get some advice too, but I felt really embarrassed.

When I finally let a swimming coach see me swim, her advice made a world of difference. She quickly diagnosed and suggested specific, effective corrections for the mistakes I was making.

Similarly in beginning legal writing, it can be excruciating for some students to share their work, or any of their thoughts. Raising a hand is the last thing many students would do. Even turning in early assignments just to the professor can be stressful. Just the thought of letting someone reading a piece of writing can interfere with the writing process.

But most of the time, almost everyone in the room is dealing with the same questions and issues in their work. Sharing one’s work is a huge step towards getting a genuine assessment of its strengths and weaknesses. No matter how bad the first attempt, it won’t be the worst piece of legal writing an experienced professor has ever seen. And it probably has some predictable patterns that can be recognized and re-shaped to create much more effective work.

Working with a coach is great, but the coach can’t do it for you.

The coach spent 45 minutes with me and vastly improved the efficiency of what I was doing in the water. She showed me what I needed to be doing with my arms and legs and breathing, correcting my misconceptions. She also let me know about some of the conventions of swimming that didn’t seem important to me but in fact are important to real swimmers. For example, you always touch the wall. Stopping a few inches short because “whatever, it’s just a few inches,” is not what real swimmers do.

As the lesson went on, my brain started to overload and my body started to tire. I got frustrated and may have dropped a particular profane word. The coach could have given me more advice, but I couldn’t learn. She ended with a gentle admonition: “You just need to swim. Are you going to come out here and practice?”

Students must have a similar experience when meeting with their legal writing professors. Skillful feedback can help a new legal writer cut through a lot of ineffective habits. The professor can help the student understand that some practices—such as sticking with the same legally significant term instead of resorting to the thesaurus—need to be accepted for the student to become a real legal writer.

But there’s only so many writing points that a writing conference can cover. At some point, the student (understandably) has maxed out on taking advice. And then the student has to leave the conference, go out, and just write.

Sometimes you need a break. Sometimes you should keep going.

Swimming is really, really tiring. And people who are tired make mistakes. With swimming, at best this means slowing down. It can also mean a noseful of water and coughing fit in the middle of the lap lane. At such moments, the best thing seems to be just to calm down and reset for another try.

And so it is with learning legal writing. Sometimes the writing muscles just get tired. Just sitting at a computer does not lead to writing. As John Wooden once said, “Don’t mistake activity for achievement.” The writing activity in marathon writing sessions may be particularly vulnerable to mistakes. And the problem there is not just sloppy or confusing writing but substantive mistakes that could affect legal advice to a client.

But that does not mean quitting at the first sign of fatigue. It doesn’t mean all mistakes signal break time. Any athlete must push the boundaries of fatigue to improve. As an adult-learner in the swimming world, my workouts are pathetic by lifelong swimmer standards. But challenging myself to do an extra lap or another short set will be what moves me forward.

Similarly with writing, pushing through the frustration is often crucial to making actual progress.

Accomplishment comes in tiny moments at first.

Breakthroughs can be subtle. At some point I started stretching out in front of me and “pulling” more water. (See how I used the word “pulling”? I am pretty sure that’s a real swimming word!) I was able to rotate in the water instead of swimming like a floating ironing board. Progress was slow, but the time in the pool made a lot of difference, and I knew I was getting better.

Similarly for new legal writers, real progress can be halting at first: Read a case and highlighting an important quote. Make an outline and look at how it has a point A without a point B (yikes!). Write a sentence and realizing that it is too specific to start a new paragraph; it’s a detail, not an idea about the law. Nobody else will be there to see these brief flashes, but they are so important.  The progress is subtle and private—but real.

The lesson and the learning are never really “finished.”

I’d like to say I’m a great or even just a strong swimmer now. That’s just not the case. But I’m a lot better. I wear a one-piece, cap, and goggles, and take a lane. I will continue to consult coaches from time to time and work on my own.

Learning legal writing is much the same. At the end of a year in legal writing, the transition is underway but incomplete. There is much to learn from the experts and from continued effort and experimentation. My hope for the students is that they know what to do to get better. My hope is that they feel the satisfaction of gaining a new skill.

Photo Credit: WordPress Photo Library

Legal communicationNonverbal communicationPeople skillsPublic speaking

“I hear you”

“I hear you.”

Those words can be powerful. They can also be scripted.

At his listening session with survivors of mass shootings at schools and families of victims, President Trump was photographed holding a notecard with five points. They included questions such as “What would you most want me to know about your experience?” The last line, point number five, was “I hear you.”

Trump was derided by some for having to script out basic empathy. Was he actually listening?

There are multiple levels of listening. In their textbook on listening, Margaret Fitch-Hauser and Debra Worthington cite literature on workplace conflicts that identify six levels of listening:

  • Passive listening. This is “marginal listening” while sitting quietly while someone talks. “We are aware that the other person is talking, but we don’t expend enough energy to truly comprehend what the individual is saying.”
  • Responsive listening. This means “making acknowledgements, either verbal or nonverbal, that we are listening.” Responsive listening “has the potential to damage a relationship because we remain disengaged as a communicator but send the false message that we are paying attention and listening.” Responsive listening relies on established social schema (basically scripts, in this context) such as “How are you? Fine, thank you. And you? Fine thanks.”
  • Selective listening. This means engaging the brain and listening, but for “only things that support what we believe, think, or endorse.” Fitch-Hauser and Worthington call it “listening with an agenda.” Doing this too much leads others to resent the selective listener for having a lack of awareness.
  • Attentive listening. This is a form of selective listening because it does have an agenda—for example, a doctor or lawyer interviewing a patient or client. But the listener uses “probing and inquisitiveness” and “evaluative questions that guide the responses of the other person.” Still, this form of listening is about the listener’s agenda, not the speaker’s needs to be heard.
  • Active listening. This uses all of one’s listening capability and “total sensory” engagement to pay attention to verbal and visual cues: “we listen to the paralinguistic aspects of the message, we focus on the facial expressions and the body language, and we listen to the patterns of silence.” Active listening also means giving “reflective responses that provide feedback to the other party” demonstrating understanding and encouraging them to continue. Active listening requires accepting that the other person has feelings and ideas, although it does not require accepting that their feelings and ideas are justified.
  • Empathetic listening. This means “listening with the intent to accept and understand the other person’s frame of reference.” Empathetic listeners “suspend [their] personal reality and immerse themselves in the other person’s reality.” The purpose is not to gather information but to understand and accept the other person’s feelings.

The words “I hear you” could be used at several of these different levels. They may be a rote script, i.e. just responsive listening. They may be a placeholder for selective listening: “I hear you. But . . .” They may be a tool for the attentive listener to hasten the speaker and move on with the agenda of questions. Or the words “I hear you” may be part of a more complete response with active, empathetic listening. “I hear you. You just went through the worst experience of your life and lost your best friend. And you want to do something about this so it never happens again.”

So I think the problem with the notes containing “I hear you” is actually not that the president prepared substantive questions or was reminded to use listening cues. At least one person agrees with me, I discovered when searching for reactions to this photo:

Revealing that list of listening cues is the bigger problem and impediment to meaningful sharing. Being a good listener means managing your listening behaviors to establish your sincere intent.

But revealing a list of cues containing the words “I hear you” means any authentic utterance of “I hear you” would look inauthentic. The very visibility of the notes to others means the notes shouldn’t be used. At least not as to the overall generic reaction language of “I hear you.”

Revealing the cues could silently shape the dialogue by discouraging those who were considering sharing something, but spied the notes. Scripted responsive listening may damage a relationship, as Fitch-Hauser and Worthington point out. Seeing “I hear you” in someone’s pre-prepared notes could reasonably be interpreted to mean the listener will represent that listening has occurred, regardless of whether it actually has. And what’s the point of sharing with a listener on autopilot?

Using notes is not a bad thing. But notes—whether jotted on a 3×5 card, tapped out on a phone screen, or outlined on White House card stock—are a tangible part of the listener’s overall effectiveness. The notes should be held and managed with care to promote listening, not to distract and possibly stifle it.

 

 

Legal communication

Suppressive listening: Book review of Darktown

Darktown by Thomas Mullen is the first book I’ve read this year, and I do recommend it. It’s a police-procedural suspense book set in Atlanta in 1948, the year the Atlanta Police Department opened a police precinct with the APD’s first Black officers. The APD, somewhat cleansed of its KKK elements (although not really), was a hostile, undermining, patchily corrupt group of colleagues who did not welcome these new officers in the least. Here’s a snippet from the New York Times’s review:

One incendiary image ignites the next in this highly combustible procedural, set in the city’s rigidly segregated black neighborhoods during the pre-civil-rights era and written with a ferocious passion that’ll knock the wind out of you.

One of the minor characters is a U.S. Congressman with a reputation for being an ally to the civil-rights cause. Protagonist Officer Boggs is investigating a murder victim’s possible connections to this Congressman. In pursuing a meandering and suspenseful path to the answer, Boggs comes to speak with a civil-rights activist who knew both the victim and the Congressman, described as such:

“We have written him a few letters, asking for better funding for Negro schools, in Atlanta and in the country. But I’m not holding my breath. Sometimes it’s the ones who claim they’re progressive who are the worst, because they act like they are the very boundary between the possible and the impossible, and they never let you cross them. Know what I mean?”

The story speeds past this tiny moment, but it gave me pause. It’s a kind of listening I’ve been thinking about a lot recently. One way to describe it is “suppressive listening.”

It’s the kind of listening that lends an empathetic ear. The listener does it all by the book, providing a comfortable setting and full focus, giving the speaker a chance to really be heard. It feels good to say what happened or what is needed, and not be judged or face retribution. There’s value in that kind of listening.

And then, the response: “I’m willing to take this up further. Here’s how I see it playing out.”  “This is important, but we are playing a long game and this may not be the time.” “Do you really want to do that?”

It’s phrased with empathy, and the listener may in fact experience empathy: “I want this whole system to change too—I wish we could tear it down. But I don’t want to make things worse right now either.”

The result of suppressive listening is that advocacy is suppressed. Complaints are suppressed. Listening provides an outlet for whoever is in need, but the listener also acts as a gatekeeper wielding (and preserving) power and discretion. Some ideas are never shared; some needs are never known. Some secrets are kept. Some become “open secrets.”

One message of Darktown is that mysteries may be neatly solved, but power does not let go, and institutions hold on to it by whatever means necessary. The white power structure of the 1940s responded to Black Americans’ attempts to vote—as well as simply to be seen in uniform marching as a U.S. veteran—with violence. There are some moments of connection in the book, but they are forged by action and by shared risk, not by talk alone, nor by listening. The conversations that restore and replenish are not the ones from activist to congressman or from black cop to white ally. A moment of quiet listening is shared between a mother and her adult son, telling him she sees his struggle and knows he is making a difference. She doesn’t hold the keys to what is possible, only what her son needs in that moment.

Law schoolLegal communicationLegal education

Tending your garden

Today my Emory Law colleague Ben Chapman and I launched the fourth iteration of our class, Advanced Legal Writing: Blogging and Social Media for Lawyers. This is a “cool class” (according to an upcoming issue of the Emory magazine) where students explore and practice the genre of legal blogging. Their final exam is to select a legal-blogging niche and then develop a WordPress blog with several thousand words of analytical and expressive content. In preparing my opening remarks for this year’s class, I was reflecting on this blog and what it has meant for me professionally and personally.

I launched Listen Like a Lawyer almost five years ago. (Here’s my first post.) My reason for picking listening as a niche was (1) there are already lots of great blogs about my original area of expertise, legal writing; and (2) listening is a hidden and under-appreciated part of being an effective (legal) professional and person.

The niche is admittedly challenging because it has many audiences:

  • law students who listen to lectures in big classes, then go out and try to work with supervisors and colleagues in externships and activities
  • new lawyers who may be assessed mostly on their technical lawyering skills such as taking depositions
  • mid-level and senior lawyers who need to manage teams, lead their organizations and the legal industry, and network effectively to bring in business
  • in-house counsel who routinely work with GCs and business teams, closing the distance between the business and legal mindsets
  • law professors who teach and write about communication and rhetoric
  • legal professionals such as paralegals and administrative assistants who, like all professionals, work more effectively with strong listening skills and who may face particular issues with hierarchical listening (or non-listening)
  • legal-marketing professionals who often demonstrate superior listening skills to anyone listed above but may also face hierarchies that may distort or block their contributions
  • legal innovators who advocate “disruption” and unbundling and other stuff like that—which ideally will include lots of listening at the design stage and will preserve some role for listening of “the efficient delivery of legal services”
  • professionals and future professionals in all fields who hope to listen to their own inner voices (when healthy to do so) and connect with others

It is quite a challenge to reach these diverse audiences. Luckily I am a law professor who is writing for many reasons, none of which includes delivering a hyper-targeted message to a single audience for marketing purposes. My goals are learning, sharing knowledge, developing knowledge, prompting conversation, promoting better lawyer-client relations, and encouraging more effective collaborative relationships in the legal industry. One lesson to students is to avoid clichés like the plague, but doesn’t this seem like a WIN-WIN-WIN?

I’ve been thinking about the blog a lot as its five-year anniversary approaches in summer 2018. Late last year, I was considering bequeathing it to a new editor or even retiring it. Some reflections over the holidays have convinced me I’m not ready to do that. It’s like my garden, and I enjoy tending it.

That metaphor is a great way to TL; DR the ideas from my scholarly article on legal blogging several years ago:

Traditional legal writing on behalf of clients is like growing a bonsai tree. There is artistry, history, culture, and technical craftsmanship. All of that means there are also a lot of rules. And it’s a creation on a pretty small scale; only a few people may ever see it.

Legal blogging, by contrast, is like a wildflower garden or cultivated rainforest. It’s a different kind of cultivation—which may look totally out of control but actually can achieve some unexpected and serendipitous results. Still, you have to work at it and shape it, or the wrong things will grow (or it will die).

Writing this blog really has led to some serendipitous results, and there is still a lot to say. The current political climate has led to initiatives like #ListenFirst. Through the International Listening Association I have met listening scholars such as Graham Bodie and Debra Worthington, who just published a giant tome on listening research. There is a growing body of legal scholarship on interruptions at oral argument and even what vocal pitch can tell us about the justices’ individual votes. Along those lines, technology is opening new possibilities such as wearable devices that record and quantify the interactions between colleagues. But at the most fundamental level, listening is a way to connect with people, which will always mean something.

So, this year I will continue to write about stuff like communication dynamics at work, specific listening techniques, listening and building community, listening for law-school performance, and listening as part of the legal-writing process. I will invite guest posts if and when I feel like it, and write basically anything I feel like writing about. I will try to stand back every once in a while and enjoy just looking at the result of my labor. And that, for any Law 851 students who may still be reading, is a pretty cool thing about legal blogging.

Someone else thought of the gardening metaphor too, in terms of blogging for business development. I like what they have to say about developing quality content over time rather than going for short-term fixes.

 

Legal communicationNarrativeResilienceSelf-careWork-life balance

Hygge for lawyers

Hygge has been called everything from “the art of creating intimacy,” “coziness of the soul,” and the “absence of annoyance,” to “taking pleasure from the presence of soothing things,” “cozy togetherness,” and … “cocoa by candlelight.”

Hygge is an atmosphere and an experience, rather than about things. It is about being with the people we love. A feeling of home. A feeling that we are safe, that we are shielded from the world and allow ourselves to let our guard down. You may be having an endless conversation about the small or big things in life—or just be comfortable in each other’s silent company—or simply just be by yourself enjoying a cup of tea.

Meik Wiking, The Little Book of Hygge: Danish Secrets to Happy Living (2017)

In my last post of 2017, here’s something I’ve wanted to do all year: write about “hygge.”

The quote above from The Little Book of Hygge gives a good sense of what it is; it’s also claimed as the reason the Danish people are apparently the happiest in Europe. It’s the opposite of self-help trends such as “eating clean,” according to The Little Book of Hygge’s publisher:

Hygge is about embracing things—enjoying cake, not checking work emails all weekend, spending time with friends and family. It’s about the simple, small pleasures that make life great, which perhaps sometimes pass us by.

For some, the holiday season is a time to embrace the hygge with family and friends. NPR has this article on how to host a hygge holiday party.

But the hygge experience does not have to be limited to a holiday respite. I had a really rough first semester in law school, and one saving grace was the hygge qualities of the rental house I shared with three roommates. We had lots of nooks with comfy seating, pillows and throw blankets, lamps all around with soft lighting, a friendly cat, tons of mugs for always-brewing coffee and tea, shared meals, and good conversation whenever you wanted, but no obligation to talk. While my perception of the 1L law-school environment got worse and worse, I was able to take comfort in our cozy home and the people in it. Looking back, the first semester of law school just totally sucked, and everything got better from there. I’m grateful to my roommates—now lifelong friends—who made the environment that helped so much during that initial low point.

Away from home, aspects of hygge can make an office more supportive. The Little Book of Hygge suggests maintaining a small office garden, adding a sofa rather than just office chairs, starting a Friday office potluck tradition, and—in a perfect world (that’s an editorial comment by me) even bringing your dog to work. One of the happiest lawyers I know started his own firm and does just that, pretty much every day.

IMG_7403

This is not my dog, but I stopped and had a hygge moment with him.

So having a “hyggelig” environment can help any lawyer with the behind-the-scenes wellness. Beth Padgett of South Carolina Bar’s Lawyers Helping Lawyers program wrote about hygge for lawyers in the March 2017 issue of the S.C. bar publication (page 9 here):

Many people find the work of improving their mental or emotional health (or even their attitude) to be daunting for a host of reasons. Hygge seems to be a simple and nonthreatening way to create some change.

Note: For those who struggle during the holidays, here and here are some suggestions on supporting them.

 

GenderLegal communicationPeople skillsProfessional identity

Listening in the Family

Last week’s allegations of sexual harassment against Judge Alex Kozinski brought a response by the judge:

“I treat all of my employees as family and work very closely with most of them.”

Invoking the family is not an entirely warm-and-fuzzy metaphor, as several have pointed out (hat tip to @gokpkd for pointing out this thread):

Family is both a place where people can let their guard down—this could mean everyone in the family, or just some, or just one. It’s also a place where ingrained patterns can replicate themselves over and over—for good, or for bad. The experience of being in a family sets up your framework, or “schemata,” for understanding what happens inside that family, as noted in Debra Worthington and Margaret Fitch-Hauser’s text Listening: Processes, Functions, and Competencies. For children, early family experiences also influence the way they communicate with everyone else in the world.

Families can be classified in two communication orientations, according to family-studies scholarship cited in Worthington and Fitch-Hauser:

  • Conversation orientation, in which all family members converse freely about a wide variety of subjects.
  • Conformity orientation, in which “a family stresses the importance of having homogenous attitudes, values, and beliefs.” Such families “stress[] the importance of hierarchy and clear rules.”

It struck me in reading reports on Judge Kozinski’s chambers that the environment sounds like the worst of all worlds: Judge Kozinski himself certainly appeared to take a broad and flexible orientation toward conversation topics, including but not limited to pornography. But clerks themselves were expected to conform, according to Heidi Bond’s account. She reports being asked to control her own reading preferences as the judge ordered; she reports the judge grabbed her arm and described her as his “slave.”   That’s not healthy. And the extent of just how toxic this environment was, for some clerks, continues to unfold.

Even for those not reporting harassment or heeding internal alarm bells prompting them to avoid the judge, the family metaphor could be troubling. I was reminded of another post on company executives invoking family:

Whenever executives talk about how their company is really like a big ol’ family, beware. They’re usually not referring to how the company is going to protect you no matter what or love you unconditionally. You know, like healthy families would. The motive is rather more likely to be a unidirectional form of sacrifice: Yours.

Months before these allegations against the judge, the “family” metaphor was being taken down by Sam Sanders (@samsanders). His thread (and many responses to it) explored how work as a family may really mean not only exploiting the powerless but also hiding what’s wrong and protecting secrets:

What is a strong and healthy family? Fitch-Hauser and Worthington describe a strong family as follows:

  • Commitment to the family and well-being of its members
  • Positive communication and the ability to engage in constructive conflict management
  • Regular expression and confirmation of affection among family members
  • Enjoyment of quality time together
  • A feeling of spiritual well-being
  • Ability to effectively manage stress and crisis situations.

This list reinforces that work may have some characteristics of a family. One would hope the workplace offers constructive conflict management and the ability to manage crisis situations.

But work is not family. Family is family.